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the confidentiality of the documents kept by [a former consultant
to the plaintiff]”); Apex Mun. Fund v. N-Group Sec., 841 F. Supp.
1423, 1433 (S.D. Tex. 1993) (refusing to recognize attorney-
client privilege over documents that the party asserting the
privilege had effectively abandoned to a former employee).
International has made no showing of any precautions taken to
maintain the confidentiality of the exhibits, either generally or
with respect to departing employees, such as Moore. Indeed, Dr.
Joffe was Manager of Surgery Center in 1997, when Kelly authored
the exhibits, and continuing through July 28, 2000. He was
available to testify or provide an affidavit as to precautions
taken to insure the confidentiality of the exhibits, but he did
not do so. We think that a fair inference to be drawn from
International’s failure to call Dr. Joffe or provide his
affidavit is that his testimony or declaration would have been
negative to International. See Wichita Terminal Elevator Co. v.
Commissioner, 6 T.C. 1158, 1165 (1946) (“the failure of a party
to introduce evidence within his possession and which, if true,
would be favorable to him, gives rise to the presumption that if
produced it would be unfavorable”), affd. 162 F.2d 513 (10th Cir.
1947); see also United States v. Tory, 52 F.3d 207, 211 (9th Cir.
1995) (similar). We therefore find that Surgery Center failed to
preserve the confidentiality of the exhibits, with the result
that Moore’s disclosure of the exhibits destroyed the
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